EDK17 v Minister for Immigration

[2018] FCCA 708

FEDERAL CIRCUIT COURT OF AUSTRALIA

EDK17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 708

Catchwords:

MIGRATION – Review of Immigration Assessment Authority’s decision (IAA) – visa – Safe Haven Enterprise Visa (SHEV) refusal – relocation – complementary protection – protection visa – persecution.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision was affected by jurisdictional error by reason that the IAA made an unreasonable finding of fact – whether the IAA made a finding which was irrational or illogical.

Legislation:

Migration Act 1958 (Cth), ss.31, 35A, 36, 65, 473CB, 476

Cases cited:

BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZATV v Minister for Immigration and Border Protection & Anor (2007) 233 CLR 18

Applicant: EDK17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2881 of 2017

Judgment of: Judge Baird

Hearing date: 12 March 2018

Delivered at: Sydney

Delivered on: 12 March 2018

REPRESENTATION

Counsel for the Applicant: Mr O Jones

Solicitors for the Applicant: Warren Yi, Solicitor

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Leave be granted to the Applicant to rely on the amended application filed 7 March 2018.

2. The application filed 15 September 2017, and amended 7 March 2018, be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the sum of $6,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2881 of 2017

EDK17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Second Respondent, the Immigration Assessment Authority, made 23 June 2017, that affirmed a decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection, made 10 May 2017, refusing to grant the Applicant a Safe Haven Enterprise (Class XE) Visa (SHEV).

2. The Applicant is a citizen of Lebanon, a Sunni Muslim from the northern district of Lebanon.  In June 2013 the Applicant travelled legally from Lebanon to Indonesia before travelling to Australia by boat.  On 23 December 2016, the Applicant made an application for a SHEV.  His claims to fear harm were set out in a statement attached to his SHEV application (in a letter dated 6 February 2017), and he was interviewed regarding his application on 23 March 2017.  Subsequently, his migration agent sent a letter to the Delegate on 30 March 2017 and points of clarification. 

Background

1. The Applicant claimed to fear harm if returned to Lebanon from members of the Jabhat al-Nusra Front (JN), a jihadist organisation.  He claimed that members of JN targeted him to join them, and when he refused, they threatened him, including by claiming they would kill a member of his family.  In addition, in subsequent correspondence, namely the letter of 30 March 2017, the Applicant claimed that he would be exposed by family members of his brother's wife which would raise his profile and increase his chance of persecution in North Lebanon where his brother's wife's family lives.

2. The Applicant was granted a bridging visa (Class BVE) in July 2016. Subsequently, the Applicant was accused by his brother's wife of aggravated sexual assault and was charged.  His visa was subsequently cancelled, and as a result, he was placed in immigration detention at Villawood.  The Applicant pleaded not guilty.  As at the date of the Delegate's decision, the matter was continuing.

3. On 10 May 2017 the Delegate refused to grant the SHEV. The Delegate found that the Applicant's fear of harm at the hands of JN was not well-founded, but that the Applicant was at risk of significant harm from the family of his brother's wife (who, it had been claimed, he had assaulted in Australia). However, the Delegate found that the Applicant could safely relocate to Beirut and was satisfied that the Applicant was not a person in respect of whom Australia has protection obligations.

4. The Authority affirmed the decision of the Delegate not to grant the Applicant a protection visa.  On 15 September 2017, the Applicant filed an application for judicial review in this Court.  On 30 October 2017, the Court granted an extension of time for the filing of the application for judicial review, up to and including 15 September 2017, the date when the application was filed.

The ground the Applicant relies on

1. In his amended application filed 7 March 2018, which I granted leave to proceed on, the Applicant asserts the following ground:

   1.The Authority made a legally unreasonable finding of fact with respect to the question of whether the Applicant would be located by the family of his alleged victim in Beirut, as there was material before the Authority and otherwise relied upon by the Authority which supported the conclusion that the Applicant would be so located.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the Minister may grant a visa. Section 65(1)(b) of the Act provides that if the Minister is not satisfied of those matters, the Minister is to refuse to grant the visa. Section 31(1) of the Act provides that there are to be prescribed classes of visas, and s.31(2) then provides for classes of visas by the following provisions.

2. Relevantly, s.35A(3A) provides for a SHEV, the type of protection visa the Applicant has sought in the present case. The criterion for a protection visa is set out in s.36 of the Act. Subsection 36(2) provides that the applicant for a visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations because the person is a refugee;

   or, in subparagraph (aa), where the applicant is:

   (aa)a non-citizen in Australia, (other than a non-citizen mentioned in paragraph (a)), in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm.

3. What constitutes significant harm is defined in s.36(2A). However, s.36(2B) states that:

   there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm. 

   Further subparagraphs deal with other circumstances not relevant to the present case.

The Delegate's decision

1. The Delegate had before him the SHEV application, a record of an interview with the Applicant, and two letters, one accompanying or slightly after the SHEV application, dated 6 February 2017, and the second letter dated 30 March 2017. As the present application raises the question of whether the Authority's decision was affected by legal unreasonableness in relation to the complementary protection provision s.36(2)(aa), it is appropriate that I focus on those aspects of the Delegate's consideration and the facts before the Delegate relevant to that matter.

2. In the letter of 30 March 2017, at point [8], the Applicant's solicitor and migration agent stated that the Applicant “…has nothing in Beirut.  To relocate him there would be to relocate him to a place where he has nothing.”  And further, at point [9], after informing the recipient of the letter that the Applicant was in detention and had been in custody over an accusation by his brother's wife (the alleged victim) that led to a charge of aggravated sexual assault, and that he maintains his innocence, that on 9 March 2017 the Applicant’s brother was found not guilty over other criminal charges, brought about through accusations from the alleged victim, and that the family of the alleged victim continues to pursue vexatious and malicious accusations against the brothers.

3. The Applicant's solicitor and migration agent then stated that the extended family of the alleged victim also reside in North Lebanon and submitted that the vendetta against the Applicant may spread to North Lebanon, and that considering that the Applicant would need to hide from members of JN, a low public profile would help him:  “All that would be required for him to be exposed or known to others in Lebanon would be by members of the alleged victim's family to talk about him,” and that was stated to increase his chances of persecution.

4. The Delegate accepted as credible the fact that the Applicant fears retribution from the extended family of the alleged victim, who also reside in North Lebanon. The Delegate noted that the Applicant explained that his older brother operates a charcoal shop in Beirut and that the brother occasionally stays overnight in a room above his shop. The current shop has been operating for about two months, but prior to this, the brother operated a shop in a similar area for about six to seven years. The Delegate recorded that the Applicant stated that he sometimes used to travel to Beirut to assist the brother in his work, and that the Applicant also indicated he was involved in agricultural endeavours through his family's farm, woodcutting and the retail side of selling such harvested products.  Whilst living in the Australian community, the Applicant stated that he had worked and trained part-time in the concrete and construction industry.

5. The Delegate accepted that the Applicant was being held in immigration detention because of an accusation by the alleged victim that has led to a charge of aggravated sexual assault.  He accepted that if the alleged victim's extended family members, who also reside in North Lebanon, were to know of his return to the area, they may act out a “personnel” - which I understand to mean “personal” - vendetta on behalf of the alleged victim.  The Delegate found that based on the Applicant's testimony, the alleged victim was not aware of the Applicant's specific refugee claims or that he has lodged an application with the Department for Immigration and Border Protection. 

6. The Applicant did not offer any information to suggest that the alleged victim had family in Beirut or that her family would be able to harm him if he moved to Beirut. 

7. The Delegate considered the question of relocation within Lebanon and considered some country information.  The Delegate stated he put to the Applicant that country information indicated that internal relocation within Lebanon offers a degree of anonymity and the opportunity for an individual to seek refuge from discrimination or violence.  The Delegate stated that, importantly, Beirut is home to mixed ethnic and religious communities and offers more opportunities for employment, access to services and a greater degree of state protection than other areas of Lebanon. 

8. Given this country information, the Applicant was invited to give any reasons as to why he should not be able to relocate to Beirut.  The Applicant stated, according to the Delegate, that:

   According to my observations and the way I lived in Lebanon, I think I know Lebanon better.  There is no safe place in Lebanon for people to relocate to.  In particular, to this group of people, they [JN] are capable of locating anyone they want. And that is what has happened, not with ordinary people like me, but major government officials as well … anyone they want to target ...  Many high-ranking officers, even in the Army, were targeted and killed.  I am talking about Beirut...  These things happened in Beirut. 

   The Applicant was asked if there were any other vulnerabilities or factors that would impact on his ability to live in Beirut.  The Applicant stated, "No".

9. In terms of relocation to Beirut, under the complementary protection criteria assessment of s.36(2)(aa), the Delegate accepted as plausible that the Applicant faces a real risk of significant harm from members of his brother's wife's extended family, who also reside in North Lebanon. As to relocation to Beirut, the Delegate referred to the DFAT information and also referred to what was reasonable. The Delegate observed that the majority of the High Court in SZATV v Minister for Immigration & Anor (2007) 233 CLR 18 at [23]–[24] established that relocation is reasonable if it is practicable and meaningful in terms of safety, economic and social needs, and civil, political and human rights. It would also depend on the particular circumstances of the Applicant and the impact of relocation on the Applicant.

10. The Delegate then stated that he considered the issues the Applicant faces from  the alleged victim’s family to be a localised family issue in the North of Lebanon, and there is no evidence to say that his sister‑in‑law's family influence extends to all parts of Lebanon.

11. The Delegate addressed different elements that would comprise what could be reasonably considered to assist the Applicant to subsist in Beirut.  DFAT reported that the Lebanese government does not impose restrictions on the freedom of movement of its citizens.  Ordinary Lebanese citizens can legally relocate and settle to an area where their religious group predominates.  DFAT further reported that “Sunnis, Shias and Alawites can all easily relocate to Beirut.”  Education is also available across Lebanon.  Employment is available and accessible.  According to the same report, rental accommodation is available across the country and that would include Beirut.  The Delegate stated he was mindful that other factors should be considered in assessing the reasonableness of relocation in addition to the country information cited above.

12. The personal circumstances of the Applicant were, on the evidence before the Delegate, that the Applicant:

    [I]s an able-bodied, mobile, literate and employable person with sufficient employment skills and experience. He has indicated that he has travelled to Beirut on multiple occasions to work in his brother’s shop (which appears to include a room where the Applicant’s brother occasionally resides) – indicating that he has a moderate degree of familiarity with the city. I am satisfied that his familiarity of having travelled to and worked in Beirut on multiple occasions will help to protect him from being considered an outsider upon return.

    Furthermore, I have considered the Applicant’s demonstrated adaptability and resourcefulness in travelling to and residing in Australia, a country with a culture, language and history significantly different from his own. I consider that the Applicant’s proven adaptability and resourcefulness contributes further to the finding that he would be able to engage with the community in Beirut, a city with which he is familiar, to find employment and access services …

The Authority’s decision

1. Turning then to the Authority. The Authority had before it, as is clear from paragraphs [4] and [5] of the Authority's decision, the material referred to by the Secretary under s.473CB of the Act, namely the material to which I have already referred. The Applicant contacted the Authority on 23 May 2017, a month before the decision was given - and stated that he may provide further material. No material had been received as at the time of the Authority’s decision. I am conscious that whether or not the Applicant provided further material does not exonerate the Authority from legal unreasonableness, if indeed that is to be found.

2. At paragraph [6], last dot point, of the Authority’s decision, the Authority notes that in his post-interview submissions, the Applicant claims that the family of his alleged victim has a vendetta against the Applicant and his brother, and that this family also resides in the northern district of Lebanon. At paragraph [19], the Authority again refers to the post-interview submission and the Applicant's claim that if he returns to Lebanon, this family may expose him and this would lead to a greater risk that JN will find him and harm him. The Authority observed that there is no other information or evidence to support this fear, and the Authority considered the fear of exposure to be speculative. However, even if the family was to expose the Applicant, the Authority had found that JN has no interest in the Applicant and is not seeking to harm him.

3. In relation to the alleged family vendetta against the Applicant and his brother, the Authority referred to the consideration of the Delegate, and, at paragraph [21], referred to the Applicant's evidence that the alleged victim has a large family in northern Lebanon and that the family “continues to pursue vexatious and malicious accusations against the brothers.”  There is no other information or evidence to indicate what these vexatious and malicious accusations are about.  However, the Authority was prepared to accept that if the Applicant returns to northern Lebanon, this family may engage in some form of personal retribution against him.  Whilst it would not constitute persecution so as to ground refugee status, the Authority considered the vendetta issue further in relation to the complementary protection.

4. The Authority, at paragraph [32], accepted as plausible that the Applicant faces a risk in relation to the vendetta by the family of his alleged victim; the Applicant's evidence is that this family resides in northern Lebanon. The Authority stated that the extent of any harassment or harm that may be faced is speculative, but the Authority was prepared to accept that the Applicant may face a risk of significant harm as defined under s.36(2A) of the Act.

5. In paragraph [33], and following, the Authority considered the situation as applicable to the Applicant. The Authority stated that it was satisfied that the Applicant could report to the authorities any threats made by the alleged victim’s family. The Authority acknowledged that the area near the Syrian border may be more unsettled, and there remained a risk that the authorities may not be able to provide protection in the Applicant’s home area. The Authority then considered whether the Applicant could relocate to another area of Lebanon if necessary. At paragraph [34], the Authority referred to the DFAT reports that the Lebanese government places no limitations on the freedom of movement of its citizens, and that DFAT states that internal relocation offers a degree of anonymity and the opportunity for an individual to seek refuge from violence. In particular, Beirut is home to mixed ethnic and religious communities and offers opportunity for employment and a greater degree of State protection than other areas of Lebanon.

6. The Authority was prepared to accept that the Applicant's family name is uncommon and may identify his religion and the region he has come from.  The Authority found:

   … [T]hat JN has no interest in the Applicant and there are no claims or evidence that his [alleged] victim’s family has any links with JN or any other official or paramilitary organisation. There are no claims or evidence that the [alleged victim’s] family has any links to or influence in Beirut.

   The Authority then stated:

   I am not satisfied that the Applicant’s location in Beirut would become known to the family because of his name. The Applicant has also made some general comments in relation to being on Facebook, but apart from those comments, there are no other claims or evidence before me that the [alleged] victim’s family would be able to track the Applicant down if he was to relocate to Beirut.

1. At paragraph [35], which the Applicant's counsel relies on particularly, the Authority stated:

   I have considered all of this information and evidence and I am not satisfied that the [alleged] victim’s family would be able to locate the Applicant in Beirut. I find that he will not face a real risk of significant harm if he was to relocate to Beirut.

2. The Authority then turned to the Applicant's personal circumstances and identified the circumstances including the following:  whilst his family members reside in northern Lebanon, one of his brothers has a shop in Beirut, Beirut is about two hours from his village - that is, the brother's village - and this brother commutes to and from home daily, although he sometimes stays in a room above the shop.  The Applicant has also commuted to Beirut in the past to help this brother in his shop. 

3. However, the Authority also took into account the Applicant's post-interview submission that he has nothing in Beirut and would have no quality of life. The Authority then turned to the DFAT report cited above as to Beirut's mixed ethnic and religious community, and while DFAT information does not suggest it is necessary to live amongst the same religious or ethnic community, the Authority considered that the Applicant could resettle (and I state could, not should, contrary to the Applicant’s counsel’s submission) near his brother's shop and find support in a Sunni majority neighbourhood. The Authority noted that the Applicant is somewhat familiar with Beirut, having worked there in the past.

4. The Authority then went on to consider the Applicant's employment, employability, education and work experience, and, in the circumstances, found that it was reasonable for the Applicant to relocate to Beirut, an area of the country where there is not a real risk that he would suffer significant harm.

Law

1. The Applicant's counsel drew my attention to the High Court decision in Minister for Immigration v Li (2013) 249 CLR 332, 364 particularly at [68]:

   The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it ...

2. The Applicant's counsel also drew my attention to the Full Court of the Federal Court of Australia’s decision in BTW17 v Minister for Immigration [2018] FCAFC 10 at [20] where the Court cited with approval Hayne, Kiefel and Bell JJ's statement in Li at [68], and then following in [21] of BTW17, the Full Court’s internal reference to Minister for Immigration v SZMDS (2010) 240 CLR 611, in which Crennan and Bell JJ stated, at [124]:

   … [F]act finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as “illogical or unreasonable, or irrational” may merely be an emphatic way of expressing disagreement with it, and to describe a conclusion that a decision maker is not satisfied as “irrational” might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction.

3. The Applicant's counsel also drew my attention to SZMDS at [130], and that, consistent with Li:

   … [T]he decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

Submissions

1. The Applicant's counsel emphasises that the Authority’s decision in the present case, particularly in the last part of paragraph [35] of the Authority's decision, is one at which, in his submission, no rational or logical decision-maker could arrive.

2. The Applicant's counsel has asserted that there is an ample trail for ascertaining whether the Applicant was in Beirut, and that this trail of associations shows that it was legally unreasonable for the Authority to conclude that it was not satisfied that the alleged victim's family would be able to locate the Applicant in Beirut.

3. In support of the alleged jurisdictional error, the Applicant's counsel has identified the following matters:

   a)that the alleged victim's family were located in North Lebanon, and that the Applicant's village was in North Lebanon;

   b)that the Applicant's village was only a two-hour commute from Beirut, and that the Applicant's brother had commuted on a daily basis from the village to his shop in Beirut;

   c)that the Applicant had worked in the past at his brother's shop in Beirut;

   d)that the Applicant should (sic) resettle near his brother's shop and in a Sunni majority neighbourhood. (I interpose as to that last mentioned requirement or factor that, in fact, the Authority did not say what counsel asserts.  Rather, the Authority said that the Applicant could resettle near his brother's shop and find support in a Sunni majority neighbourhood.) 

   In oral submissions, the Applicant's counsel also identified that a relevant factor was that the Applicant had an uncommon family name.

Consideration

1. In the present circumstances, I am not satisfied that the decision of the Authority and those findings which the Applicant's counsel attacks are impugnable as a decision that no rational or logical decision-maker could arrive at on the same evidence. I note that the Authority was aware of information before the Delegate and identified that information relevant to the alleged victim's family as being localised to northern Lebanon, and that there are no claims or evidence that the family has any links to or influence in Beirut. That the brother's shop in Beirut is two hours from his village in North Lebanon does not provide a ground, either on its own, or cumulatively with the other identified grounds, to find that the Authority’s state of non-satisfaction that the alleged victim's family would be able to locate the Applicant in Beirut was unreasonable.

2. The Authority has taken into account each of the factors identified by the Applicant's counsel, and on the evidence it identified of the family's location, the family's lack of links with JN or any other official or paramilitary organisation, and that there were no claims or evidence that the family has any links to or influence in Beirut. I find that the matters that the Applicant relies on before this Court do not satisfy the test of legal unreasonableness, whether it is characterised by reference to the formulation in Li or the formulation in SZMDS.

3. Contrary to the case put by the Applicant, there is nothing to show that the process of reasoning undertaken by the Authority in identifying and putting into context that the Applicant’s family name was uncommon, that the alleged victim's family has no links to or influence in Beirut, and that there are no other claims than general comments in relation to being on Facebook, and no evidence before the Authority that the alleged victim's family would be able to track the Applicant down if he was to relocate to Beirut, was unreasonable. On the basis of the material before the Authority, weighing the circumstances of the Applicant's brother's shop in Beirut does not lead to an unreasonable conclusion by the Authority that it was not satisfied that the alleged victim's family would be able to locate the Applicant in Beirut.

Conclusion

1. In conclusion, I find that the Authority's finding of non-satisfaction as to the alleged victim's family's capacity to locate the Applicant in Beirut does not disclose jurisdictional error, nor does the conclusion the Authority reached that the Applicant will not face a real risk of significant harm if he was to relocate to Beirut. 

2. The Authority's conclusion at paragraph [39], that in the circumstances it is reasonable for the Applicant to relocate to Beirut, an area of the country where there is not a real risk that he will suffer significant harm, is not shown to be legally unreasonable within the tests of Li or of SZMDS. The decision of the Authority affirming the decision of the Delegate not to grant the Applicant a SHEV under s.36(2)(aa) of the Act does not demonstrate the ground of judicial review pressed by the Applicant.

3. The application should be dismissed with costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate: 

Date:  3 April 2018